People v. Jackson

64 A.D.2d 766, 407 N.Y.S.2d 263, 1978 N.Y. App. Div. LEXIS 12611

Opinion

—Appeal from a judgment of the County Court of Albany County, rendered April 20, 1977, upon a verdict convicting defendant of the crimes of robbery in the first degree and two counts of robbery in the second degree, and sentencing him to concurrent terms of imprisonment up to nine years on the first degree robbery and six years each on the second degree robbery counts. We find there was no impermissibly suggestive procedure used in obtaining the identification of defendant through the use of photographs and that defendant waived any error in the service of the CPL 710.30 notice of intent to use an oral statement by his failure to timely object or request an adjournment (People v Ross, 21 NY2d 258). We perceive no error in the sentencing procedure since the County Court expressly stated the basis for the sentence imposed, which was well within the maximum imposable sentence, was the nature of the offense—robbery in the first degree. Lastly, defendant was not denied effective legal representation due to incompetency of counsel. Defendant alleges defense counsel erred in his opening statement, in the admission of hospital records and in attempting to bring out on direct examination, past acts of misconduct of his own client. These matters reflect only choices in trial tactics and strategy, not incompetency. The alleged error of failing to file a written motion regarding possible juror misconduct is not properly before this court in any reviewable form since, there is no evidence such motion has not been made nor, that such a motion should, in fact, be made. Judgment affirmed. Mahoney, P. J., Greenblott, Sweeney, Main and Mikoll, JJ., concur.